Tuesday, January 31, 2006

Last night one of my dogs, Bud, died of pneumonia. He was eleven, and the sweetest hound you'd ever want to meet. He leaves behind my wife and I and three other dogs, who are all themselves moping around over his demise -- one of the puppies, Domino, wouldn't even eat yesterday as Bud entered his final decline. Though never formally trained, Bud obeyed most voice commands (MUCH) better than my daughter ever did, so he never needed a leash beyond puppyhood. He loved us so much. He always wanted to please. You could always talk to Bud, and he would always listen. I miss him so much, already. When he died, I cried and cried.

Monday, January 30, 2006

A wall is really going to help this, huh? Authorities have uncovered a 2,400 foot tunnel under the US-Mexico border near Tijuana. The only real way to find tunnels is through human intelligence, or snitches. The electronic gadgetry that's supposed to locate them turns out not to be effective. More than 20 cross-border tunnels have been discovered in California since the turn of the century. I'll bet there's a couple in New Mexico and Arizona, too. Via Drug War Rant.

The Fort Worth Star Telegram today has an item localizing the story about mentally incompetent inmates who can't get into state psychiatric hospitals. Many are sitting in jail for months awaiting "competency restoration" procedures ("Defendants may not get treated," Jan. 30). The state of Texas didn't allocate enough money this year for the growing number of "criminal commitments," as they're called, which caused the expanding backlog.

Grits first discussed the problem here, and wrote here how Advocacy Inc. got involved in the issue as a result of that post.

The Startlegram correctly frames the issue as a new unfunded demand by the state on county budgets:

Mental Health Mental Retardation of Tarrant County could lose as much as $4 million this year because the county has already exceeded the $10.5 million set aside by the state for treatment of inmates at state hospitals. And developing a local program to handle a backlog of criminal commitments could cost local taxpayers millions of dollars more.

"This looks like another unfunded mandate by the state," Tarrant County Commissioner Marti VanRavenswaay said. "And if we pick up a state's responsibility, they will never take it back."

That's true, and we're talking about some of the most expensive inmates to house and care for in the entire criminal justice system. What's more, the lack of appropriate facilities to house mentally incompetent inmates leaves a constitutional cloud hovering over the arrangement that could come back to bite counties in a number of ways:

Judges, prosecutors and defense laywers agree, however, that holding inmates indefinitely raises questions about civil rights violations and could be legal grounds to obtain an inmate's release.

"Legally, we cannot leave someone in county custody when they are not getting the treatment the judge ordered," said Tarrant County Assistant District Attorney Sylvia Mandel, an appellate lawyer assigned to the county's mental health diversion program. "I don't think we can warehouse them indefinitely."

The backlog could also lead to inmates' release from jail without ever standing trial, because defendants earn credit for time served. Defendants cannot be held longer than the possible maximum sentence for the crime for which they are charged.

"Misdemeanor cases could never be tried because an inmate could remain in custody beyond the terms of their possible sentence," Mandel said.

The delays would also prolong justice for victims and could violate a defendant's right to a speedy trial.

It could also pose problems for prosecutors and defense lawyers.

"When you have long delays in the trial process, witnesses sometimes get lost, and it is more difficult to try a case because witnesses begin forgetting details of the case," Mandel said.

So the crisis denies mentally incompetent inmates appropriate care and the right to a speedy trial, or in some cases any trial. Not only does that raise constitutional concerns, but it's a huge policy blunder -- Texas already dramatically underfunds indigent mental health services, preferring to use the criminal justice system to deal with the problem than paying for more psychiatric beds. Presently about 16% of Texas' prison population suffers from serious mental illness. That's penny wise and pound foolish - it'd be cheaper and safer for everybody to treat mental health problems in the community rather than wait until patients commit serious crimes and wind up in prison. Then the state must pay. Similarly, if a mentally incompetent defendant gets help after a misdemeanor charge, maybe they wouldn't later begin committing felonies.

The only short-term solution besides warehousing mentally incompetent defendants indefinitely in county jails would be for Governor Rick Perry to add this topic to the "call" for the upcoming special legislative session this spring. The state health department, reports the Startlegram, "has requested emergency funding from the Texas Legislative Budget Board, asking for an additional $34 million in state funds and $7 million from other sources. The money would add 100 civil and 98 criminal beds to the state hospital system."

This isn't just a budget problem, though: The crisis could actually harm public safety if mentally incompetent inmates must be released without ever having received mental health treatment. In that sense, the decision not to adequately care for these inmates is another example how, if our leaders aren't careful, arresting ever-more people to show we're "tuff on crime" can actually be tough on the taxpayers, and even make us less safe.

Lupinus points out that it's now easier to buy meth than to get pseudoephedrine for your cold. Notes Shaine Mata, "Pseudoephedrine is not restricted in Mexico. Nobody stuck that in their calculator. Add that to the DOH! column." Perhaps distracted by her pending trip to Holland, Majikthise seemed surpised by the news, but at Reason Hit and Run, Jacob Sullum declared, "Well, nobody saw this coming...except for anyone who gave the policy a moment's thought." The Angry Fag thinks Sudafed restrictions are an "exercise in futility and wasteful government spending."Conservative Think says the Times article is a "Lesson in how markets work." Desert Rat Democrat invokes "the law of unintended consequences." Bloggers openly discuss the new black market for Sudafed. (In this punitive age, that doesn't seem wise, does it?) Pete Guither and Mark Kleiman disagree on the moral to the story. Jeff Taylor predicts, "Next up: Cough drops."

High speed chases are one of the most dangerous activities any law enforcement officer will ever engage in, and they threaten more people than just suspects and officers. In Houston, 676 police chases last year resulted in injuries to 79 people, 14 of them were civilians "not involved in the pursuit," reported the Houston Chronicle today ("HPD's pursuit policy will be reviewed," Jan. 28).

Adopting a highly defensive posture after 12-year old Kendall Batiste and his mother were critically injured as a result of a high speed chase by Houston PD on Friday, Chief Harold Hurtt announced the department would form a committee to review its chase policies, but he sounded like he's doing it against his will.

"Unfortunately, this is yet another incident in which a criminal whose blatant disregard for the law caused a tragedy to occur, not our police officers," the chief said in a statement. "It is the intent of our officers and our pursuit policy to safely apprehend fleeing suspects."

Last week's chase ended when the man being pursued, 31-year-old Jatinderjit Mann, of Spring, drove the wrong way on a Southwest Freeway ramp and crashed into a car carrying two women and a 9-month-old baby. No one was seriously injured. Mann was charged with aggravated assault and evading arrest.

As early as Wednesday, Hurtt said he saw no need to change the department's existing policy, which allows police to pursue anyone who flees until they or their supervisors deem the chase too dangerous.

"We have pursuits every day in this city. We have a number of them that have been successful," Hurtt said before turning to Friday's chase.

"If we had not chased the individual, is there a guarantee that he would have stopped and not run over the 12-year-old?" Hurtt said.

Well, actually Chief, since the driver was fleeing because of outstanding warrants, there's an excellent chance he wouldn't have continued speeding through town if police weren't chasing him. He wasn't doing so before. That's the point! He was previously an absconder over small time warrants -- hardly a character reference, but not life threatening for anybody in any way. Now two people are critically injured and if the boy dies, the supspect will be chargd with murder. The chase made things worse for everybody involved -- there was literally zero public safety benefit from the outcome that I can see.

Many times when cops chase people for penny ante stuff -- or worse, for no other reason than that they ran and the officer doesn't know why -- it's statistically unlikely that any public safety benefit outweighs the tremendous risk. Just ask the Batiste family whether this one was worth it - I bet the answer would be "no." Police department policies should take into account whether suspects are truly a danger to others -- they're brandishing a gun, for example, or drove their car through a crowd or on the sidewalk -- or whether the biggest danger to the public would actually be the chase itself.

Hurtt's new committee should recommend mimicking reforms implemented under former Chief Al Philippus in San Antonio, where officers can chase suspects in vehicles "only when the benefit of apprehension outweighs the risk to the officer or the public." Reported the San Antonio Express News (4-7-01 - not online), SA's policy sets a "speed limit for pursuing officers of no more than 10 mph over the posted speed limit, prohibited chasing people for traffic violations and ruled that officers must come to full stops at red lights at all times"

That would preclude dangerous pursuits in urban areas over small-time foolishness like people fleeing to avoid arrest for unpaid traffic warrants, which is how most police chases start. In those instances, it's better all around for public safety if the officers call on their radios for other officers to intercept the suspect, or just get the license plate number and find the person later.

San Antonio PD's chase rules add a sense of proportionality to the chase process, balancing law enforcement's legitimate need for pursuits with the high importance of preserving public safety on the city streets. Hurtt's new committee should recommend that HPD follow their lead to protect officers, suspects and the public.

Friday, January 27, 2006

Okay, this is cool. I guess it means apart from everything else I'm having a good blog week. Rep. Aaron Pena, writing on his Capitol Blog, declares:

As is our habit, this legislator published on this blog back in January a story regarding how private cell phone records were being sold on the open market over the internet. I was quite frankly disturbed about this and saw this as just another step in the ever increasing move against the concept of privacy. I posted this story simply for public review of a problem. It was not until my friend over at Grits For Breakfast suggested that the someone should follow up with legislation that I asked my staff to begin working on legislation to make the practice illegal.

Since criminal as well as civil penalties might be involved, there is a likelihood that the bill would make its way to the committee on which I serve. After reading the two previous stories over the internet, I checked on the status of the proposed legislation. It is currently at Legislative Council being drafted as I write this entry.

Hence the value of our internet community, I am always asked whether or not I am influenced by the feedback and information I get in the blogging process. I always answer that I am but struggle to give a specific instance. Well here it is, a tip of the hat to my good friend, Scott Henson over at Grits for Breakfast for the nudge to get me started on this legislation.

Now Scott, I could also use your help in advocating for it's passage.

Hard to beat that with a stick. Thanks, Rep! I can't wait to read the bill. Whaddya say we forego prison penalties and go with restitution of $10,000 per phone number sold to the consumer (plus damages and court fees) for the punishment? For big phone companies, that's a better deterrent, anyway.

Over the years I've reluctantly come to agree with Nietzche's assertion that conviction is a greater enemy to truth than lies.

But lies don't help.

I'm already sick of the phony "immigrants as terrorists" meme our Texas Congressmen are promoting out in the world. First it was Republican John Culberson lying to Fox News announcing that Al Quaeda members had been caught crossing the border in Hudspeth County. ("First," Osama said, "we'll knock down the World Trade Center. Then we'll take Salt Flat.")That got hyped for a week, then the retraction was basically a blurb by comparison.

So where did it come from? Well, Democratic Congressman Solomon Ortiz told the same unfounded fib to a House Committee last year. The first time I saw the allegation was in the Beaumont Enterprise ("Gang's number growing" Dec. 4, 2005), but they at least had the courtesy to source the charges, and to debunk them:

Even more startling, MS-13 reportedly has connections to al-Qaida, according to information on the Web site of U.S. Rep. Solomon Ortiz, D-Corpus Christi. Central American police have said al-Qaida was trying to recruit MS-13 gang members to smuggle large sums of money into the country, Ortiz testified in March before the House Judiciary Subcommittee on Immigration, Border Security.

Customs agents say there are no confirmed connections between al-Qaida and MS-13.

So Congressman Ortiz said this is happening, but agents in charge of border security don't know anything about it. Either this man needs to be deputized and sent into the field, since his incredible intelligence-gathering skills obviously surpass the combined efforts of the nation's entire homeland security apparatus, or he just made it up to grab headlines, like Culberson did.

Now on his website, Ortiz stops short of repeating this claim, but plays the terrorism card nonetheless: "there is the real possibility that terrorists can – or already are – exploiting this series of holes in our law enforcement system along the southern border" he says without a hint of factual support. (Governor Rick Perry does the same thing.)This sort of speculative rhetoric is common, since it can't be disproven, but it's just a way for blowhards to pass the time, not based on any formal threat assessment. (After all, the guys on the planes on 9/11 came in through major airports.) If it doesn't make anyone safer, then, why would Texas Congressmen lie? Here's my theory (not an original one, mind you): Congressmen have a bipartisan interest in the same ignominious media strategy that we're seeing play out in these quotes:Hype. Fear.

It draws federal pork dollars to your district.

Hype. Fear.

It re-elects incumbents.

Hype. Fear.

It gets you quoted in the media, and helps them sell advertising.

Hype. Fear.

It lets the speaker feel self-important and talk down to his constituents.

Hype. Fear. After a while it becomes a reflex for some politicians, it works so well.

Thursday, January 26, 2006

I encouraged folks to use open records laws more often, but I forgot to add that if the government won't give up the goods you may have to sue them. That's what Students for Sensible Drug Policy is doing. They asked the US Department of Education under the Freedom of Information Act for the names of everybody who was how many students were turned down for financial aid because of a drug conviction; bully for them. The feds won't give them the standard fee waiver for nonprofits, SSDP's Tom Angell writes, because "they claim it could lead to drug legalization and that we might somehow profit!" The Department of Ed wants to bill them $4K for the information.

What a load of BS - why should their nonprofit merit less consideration than every other 501c(3)? I guess all the farm animals are equal, except some are more equal than others.

Wednesday, January 25, 2006

The Houston Chronicle reported this week that a man named Charles Mumphrey confessed to a rape for which his brother Arthur had already done 18 years in prison ("Official: Cleared man's brother admits guilt," Jan. 23). DNA evidence confirmed Arthur didn't do it. Charles actually told police the truth at the time, but they disbelieved him and went after his brother instead. This is another instance, as with Ruben Cantu, where the police decided up front who they wanted to blame for the crime, then didn't look to other suspects, this time even when he confessed. Reported the Chronicle:

According to court records, Charles Mumphrey told police he committed the crime but later changed his story after police told him he could serve time in jail for perjury. Police told him he didn't know enough about the crime and that he was trying to protect Arthur, court records said. ...

During a prison interview Friday with the Associated Press, Arthur Mumphrey said police manipulated [co-defendant-turned-snitch Steve] Thomas and the victim into blaming him for the crime.

Police pressuring victims and informants to identify the wrong suspect is emerging as a key source of wrongful convictions in Texas. Where's the substance behind all the "victim's rights" rhetoric I keep hearing, I wonder? What good did it do the rights of the 13-year old victim in this case when they ignored the real rapist who confessed to focus on their preferred suspect? She must feel just terrible. In the Ruben Cantu case, too, the victim was pressured to blame someone who wasn't culpable, even after he'd twice said Cantu didn't do it.

The best way to keep more innocent people from being convicted is to figure out how it happened before, then restructure the rules to prevent similarly flawed evidence from producing more false convictions. Faulty witness testimony ranks at the top of the list of reasons for wrongful convictions.

I've argued before that eyewitnesses should be corroborated when they didn't previously know the defendant in a criminal case, as should jailhouse informants. Even that reform wouldn't have helped here, though, because the mendacious snitch would have been corroborated by the victim's testimony. She was just pressured into naming the wrong man.

Perhaps it would have helped if police followed best practices disallowing officers doing the investigation from participating in the lineups. Lineups work best when officers conducting the procedure don't know which person is a suspect.

In any event, this case strikes another blow against the presumed credibility in court of victims' eyewitness testimony. However emotional and compelling to a jury, at the end of the day too many get it wrong.

More at CrimProf blog. The prosecutor says he "feels terrible." That and $2 will get you coffee at the Starbucks, if you don't order one of those fancy ones.

According to the Dallas Morning News ("Jail treads water in efforts to curb staph infections," Jan 25), 250 inmates per month in the Dallas County Jail acquire staph infections (along with 20-30 county employees each year). That means 3.4% of Dallas jail inmates contract staph infections each month.

Wow. For every month spent in the Dallas County Jail, you're more likely to get a staph infection than you are to hit "snake eyes" when playing craps in a Vegas casino (~2.77% chance). Wanna roll the dice?

For more on healthcare in the Dallas County jail see this article from the Dallas Observer in September.

Tuesday, January 24, 2006

If you live in Austin, here's an opportunity to support open, accountable government, including making records public about misconduct committed by Austin police officers. The Save Our Springs Alliance and ACLU are asking for volunteers to gather signatures aimed at putting an open government charter amendment on the May ballot in Austin. Reads an item on the ACLUTX website:

We need more signatures by the first week in February, so please download the simple forms, sign and circulate! Sign the Collector's Affidavit that is attached when you've finished and return them both to the petition headquarters at Glen Maxey Consulting, 512 E Riverside Dr., Ste 203, Austin TX 78704.

I'd written about the charter amendment proposal earlier here. Only a small number of police officers ever engage in serious misconduct, but keeping that misconduct secret contributes greatly to an aura of distrust between police and much of the community. The proposed amendment doesn't violate officers' rights in any way, but it makes records about allegations of police misconduct public to the same extent they are at police departments in Dallas, El Paso, and down the street at the Travis County Sheriff's Department.

I've discussed these laws in the past and the absurdly counterproductive results we've seen from them in Texas and Oklahoma. From a public safety perspective, they've been a complete bust, mostly because:

"The Mexican drug cartels were right there to feed that demand," said Tom Cunningham, the drug task force coordinator for the district attorneys council for Oklahoma, the first state to put pseudoephedrine behind pharmacy counters, in 2004. "They have always supplied marijuana, cocaine, and heroin. When we took away the local meth lab, they simply added methamphetamine to the truck."

Most interesting to me, not only have these new laws failed to reduce drug use or prevent Mexican suppliers from entering the market, they've actually increased the number of overdoses and drug-related thefts, thus reducing public safety where the laws have been enacted. Reported Zernike:

Sometimes called ice, crystal methamphetamine is far purer, and therefore even more highly addictive, than powdered home-cooked methamphetamine, a change that health officials say has led to greater risk of overdose. And because crystal methamphetamine costs more, the police say thefts are increasing, as people who once cooked at home now have to buy it. ...

"Our burglaries have just skyrocketed," said Jerry Furness, who represents Buchanan County, 150 miles northeast of Des Moines, on the Iowa drug task force. "The state asks how the decrease in meth labs has reduced danger to citizens, and it has, as far as potential explosions. But we've had a lot of burglaries where the occupants are home at the time, and that's probably more of a risk."

I'll bet the politicians who passed these ill-conceived laws don't put that quote on their campaign literature. Much of the overhyped political rhetoric surrounding the passage of Texas' law centered on protecting children of meth users. "Don't you care about children exposed to dangerous drugs?," a legislative staffer asked me last year. The implication was that opposition to pseudoephedrine restrictions meant you didn't care about children, but the Times reports that the situation may have actually worsened, and certainly didn't improve, as a result of the new laws:

although child welfare officials say they are removing fewer children from homes where parents are cooking the drug, the number of children being removed from homes where parents are using it has more than made up the difference.

So at best the law was a wash for kids, at worst more kids are exposed to meth use in the home. So what's the solution? It's the same as it ever was: reducing demand. Reducing supply in a vacuum just creates lucrative business opportunities for new suppliers. As one of the Times' sources put it:

"You can't legislate away demand," said Betty Oldenkamp, secretary of human services in South Dakota, where the governor this month proposed tightening a law that last year restricted customers to two packs of pseudoephedrine per store. "The law enforcement aspects are tremendously important, but we also have to do something to address the demand."

Actually it might be possible to "legislate" demand, or at least to legislate programs that help addicts fight their addiction instead of ostracizing and incarcerating them. You can only reduce demand one person at a time, and addicts won't seek help if they think they'll be imprisoned for decades as a result. A commitment to demand reduction would require that the same politicians who brought us the "tuff on crime" approach to the War on Sniffles shift gears, embracing pragmatism and eschewing demagoguery.

Monday, January 23, 2006

It is, quite simply, "bullshit," he says, to think that dogs can walk through subway cars, or sniff people entering turnstiles, and detect whether they've brought explosives along for the ride.

For one thing, dogs work best in quiet places that have been cleared of people other than their handlers. In airports, they are best at sniffing luggage in secluded baggage areas. Canine performance has also been shown to "fall off exponentially," the bomb expert said, because of distractions like gusts of air, noise, food, and people—all realities, of course, of mass transit. Bomb-sniffing is also exhausting work—a kind of sensory sprint—that dogs can't sustain for more than 20 or 30 minutes out of every couple of hours. And as they move through an area, dogs need constant reassurance and reward; if they aren't talked to, given an explosive to find now and then, and allowed to run back and forth, they may lose interest in the game. The explosives and the scampering would be hard to offer in the subway.

All that means sniffing dogs probably aren't that reliable at entry points on the border, either. Many are trained at Lackland Air Force Base in San Antonio.

Sunday, January 22, 2006

This Grits post about how Texas state mental hospitals are full in part because of "criminal commitments" (meaning defendants sent there by a judge until they're declared competent to stand trial) provides a fun example of useful blog activism, I think. Consider:

On Wednesday, an anonymous attorney left a story about a client in the comments to an unrelated Grits post.

I forwarded the comment to another Texas blogger who specializes in health issues to ask her opinion.

She sent the comment to someone she knew in the Department of State Health Services, who said she'd look into it.

I received an email from the head of the state hospital system inviting me to call him for an explanation, which I did.

A reader forwarded the post to an attorney from Advocacy Inc., a nonprofit legal group that works on these types of cases, who wrote in Grits' comments asking the first attorney to contact her.

I learned last night they hooked up by phone on Friday, less than 24 hours after I'd posted on the topic.

That's pretty darn cool - an anonymous blog comment results in advocates taking an issue on they didn't know about before. That's how it's supposed to work. Maybe something positive can come out of the telling of this grim tale.

I'm pleased that the ACLU of Texas is taking a pro-right-to-self-defense view; Scott Henson, director of the police accountability project for the ACLU of Texas, testified this Spring -- on the ACLU of Texas's behalf -- in favor of a proposal to let law-abiding citizens carry guns in their cars. The law ultimately passed, and Mr. Henson is now trying to check how well it's being implemented, by filing state open records act requests for any instructions that government agencies are giving police officers about the new law. Sounds like good work to me.

I appreciate that. I also appreciate the sensible position that Volokh wants to avoid unfair criticisms of the ACLU precisely BECAUSE he's sometimes substantively critical of them, so he doesn't want substance drowned out by the flow of vitriolic garbage spewed the group's way. Check out Volokh's other writing on the subject linked at the bottom of the post. (Texan blogger Tbagg discussed the post here.)

The comments were another matter. Boy, do a lot of people out there hate the ACLU - apparently even when it's defending gun rights! There were ACLU defenders, too, and some substance presented, but quite a bit of silliness, too. Actually I found the comments a little surreal, in a way. Most of the talk ignored ACLU's pro-gun rights position Volokh highlighted in Texas, instead attacking ACLU for never supporting gun rights. Many were lambasting some idea in their head of what a liberal is, barely bothering to link their critiques to the facts discussed in the post. An odd disconnect. Toward the end of the discussion I responded, and thought I'd also post my thoughts here:

The very first commenter was correct -- in practice ACLU's various affiliates take differing 2nd amendment stances, and several state affiliates have differed from the policy on the national website. In Texas for the last several years ACLU has supported the rights of legal gun owners more, perhaps, than some other affiliates.

That said, it'd be easy for an ACLUer to support the Texas law no matter what your view of the Second Amendment as a collective or individual right. Guns are legal property. Lots of people own guns in Texas, including me. To say your gun is legal in your home and legal at the gun range but not legal in your car between your home and the gun range defies common sense and criminalizes average behavior by law abiding people more than it restricts criminals. That's what the bill was designed to address.

This actually wasn't the only legislation last year in Texas where ACLU worked with the gun folks. They also helped us pass a bill (that was vetoed, sadly) that would have required police to obtain written or recorded consent to search private vehicles at traffic stops. That's because basically the only things police are searching for are drugs and guns.

It seems kind of silly to think of ACLU in black and white terms as good or evil, etc. -- it's a sprawling, vast organization that nearly everyone of any political stripe agrees with on some things and disagrees on others. I'm glad the NRA is there, too. There's room enough in this big ol' world for both of them.

Friday, January 20, 2006

I just had an extremely frustrating media call this morning from a radio shock jock named Mike Gallagher in Dallas. About 25 minutes after I woke up his producer called to get me on live representing ACLU of Texas. They wanted me to discuss a recent gift of $840,000 by the Meadows Foundation to install a surveillance camera system covering much of downtown Dallas. The Mayor gleefully declared in the morning paper that between these cameras and the red light camera systems, Dallas would be "Big Brother City," as though that's a good thing ("Cameras to watch for Dallas crime," Jan. 20). They called me, I'm sure, because I was quoted in the article declaring:

"Technology is becoming more and more invasive," said Scott Henson, director of the American Civil Liberties Union of Texas' police accountability project. "It truly is a waste of police resources. If their goal is public safety, it's really a counterproductive gift."

Anyway, so this guy Gallagher was a piece of work. I don't know why I ever agree to live radio interviews with right wingers -- 80% of them, it seems, turn out just this way. It became apparent after I was on for just a minute that Gallagher didn't really care whether cameras infringed on personal privacy or constitutional rights, or even whether they make us safer. It was just a chance to bash the ACLU for him. Three times running he declared that the ACLU was "anti-cop" in response to my point that cameras in banks and gas stations were privately owned, and therefore not restricted by the Constitution. The Constitution restricts government acting against citizens, not private conduct - that's not a particularly "liberal" view. But for him that distinction was just evidence ACLU "doesn't like cops." Just pitiful, for a self-styled conservative.I tried to discuss the recently released long-term study by the British Home Office that found surveillance cameras in public spaces didn't reduce crime in Britain. (Cameras did lessen crime in narrow circumstances, like when they're used in parking garages, but not when used generally in public.) Gallagher said cameras were a big success in Britain and wouldn't hear anything to the contrary, but this is the biggest camera study I know of, and he appeared to know nothing more than he'd read in the morning paper. Similarly, when I argued that surveillance cameras displace but don't prevent crime and may even reduce public safety by misallocating police resources, he ignored my comments to attack my credentials -- "are you a police officer?," etc., etc. How tiresome. "You called the ACLU," I told him. "If you want a police officer's opinion, get one of them on your show!"

Anyway, Gallagher had an interesting questioning tactic he repeated throughout the interview. He would ask some provocative question he thought was damaging or made a strong point. "Didn't cameras help catch the London train bombers," or "What is your law enforcement background?" Then, when I would answer, instead of taking some thread of what I said and responding to it as you would in a conversation, Gallagher would repeat the question with greater and greater force, ignoring whatever I'd just said, ultimately leading to outright insulting accusations for which he provided no basis.

"Isn't ACLU just anti-cop? ... Isn't it?!" It didn't matter what I said. His goal was to repeat that phrase and others like it as many times as he could while I was on the air. Once I figured that out, I excused myself and got off before he was finished. I was finished with him.

UPDATE: A KSKY listener cc'd me on this letter to the station regarding my interview this morning. I think this excerpt speaks for itself:

KSKY,

I am a long time KSKY listener, a life long conservative Christian, Republican and no fan of the ACLU (presumably all qualities that fall within the demographic to which KSKY seeks to appeal). I actually favor the installation of cameras in downtown Dallas to reduce crime. However, Mike Gallagher's interview of the Director of the Dallas [sic: Texas] ACLU's Police Accountability Project this morning (1/20/06) was embarrassing. Following the interview, I switched to KLIF 570AM before Mr. Gallagher got back from his commercial break. Mr. Gallagher was rude, classless, antagonistic, self-aggrandizing and, though he possessed the stronger arguments, the first to sink to ad hominem attacks. His behavior left me sickened. ...

Thursday, January 19, 2006

A frustrated attorney/Grits commenter yesterday turned me on to what I think is a major story about mentally ill defendants who've been declared incompetent but are turned away from state mental hospitals because they're already full.

No room at the inn, baby. Whatcha gonna do?

I looked into it a little and confirmed many of the commenter's assertions with the head of the state mental hospital system, Kenny Dudley. First, though, here's what happened to the lawyer's client that got him or her riled up:

A judge ordered the Sheriff of Bastrop County to deliver my client to the Austin State Hospital for treatment to attempt to attain competency to stand trial. The kid is schizophrenic, in county jail, with jailers alternatively sending him into the pods where the kid is beaten, then into isolation where the kid is suicidal. No meds. No training for dealing with schizophrenic inmates.

The sheriff had 72 hours to deliver the kid to the hospital. He didn't. The sheriff has said, since the 72 hours elapsed, 1) he'll be transported tomorrow, 2) we can't transport him until they allow new 46b intake, 3) we haven't seen an order like that.

The attorney later was told that all state mental hospitals are operating at capacity and can't take new criminal commitments. That leaves those defendants in major bind. The commenter summed up his client's dillemma in stark terms.

The lawyer for the [Department of State Health Services] said that there is a present crisis, and that it's going to get much worse. Imagine being in jail and schizophrenic, needing treatment. Instead of treatment you get beaten up, isolated, and held for longer than a plea deal would have lasted. But you can't plea. Because you are incompetent.

Ugh. How grim. That's not only bad for defendants who definitely won't get adequate medication or mental health services in jail, but also for deputies and jailers who aren't trained or equipped to handle such inmates. It just makes the whole situation a lot bigger headache for everybody.

I'd not heard about this situation before, so I emailed the comments to Hope over at the Appalachian Alumni Association who blogs on Texas health and human services issues. Hope forwarded my email to a friend in the state health bureaucracy who promised to look into it, and the next thing I know I get an email from Kenny Dudley, the head of the state hospital system, inviting me to call him to receive an explanation about what's going on -- now that's service! (Thanks Hope!)

Dudley confirmed that mentally incompetent inmates are waiting around in county jails for space in state hospitals to open up -- about 100 inmates right now are on the waiting list statewide, he said. State hospitals have 642 beds designated for criminal commitments like these, he said, and civil commitments are also overflowing -- the hospital system has been full up for at least 12 months. Dudley said that in theory such folks could ask local community mental health centers for help evaluating competency, but he doubted they were equipped to do the work. There's really no place for them to go.Harris County is the only exception -- there the community mental health center has been doing contract "competency restoration" work for local agencies.

The Texas Department of State Health Services last year requested but did not receive new funds to add facilities and beds. Texas is seeing more criminal code commitments than ever before, Dudley said. Asked why, he said he didn't know -- there were just "more people being declared incompetent to stand trial" in courts around the state.

Dudley said state hospitals were caught in a bind. On the one hand, he said, "if a court committed a person to us, are we supposed to take them? Most people say 'yes,' you should take them if there's a valid court order." On the other hand, "the state has a legal responsibility to provide people in our care with appropriate services," so facility administrators have a duty not to take in more patients than those for whom state hospitals are able to provide adequate care.

So state hospitals find themselves on the horns of a dilemma -- more judges than ever are declaring defendants incompetent to stand trial, for whatever reason, but the Legislature has not provided adequate resources to meet the state's lawful duty toward those defendants.

This is a serious problem the Texas Legislature failed to solve when it last met. Dudley's told his higher-ups about it and requested money to add more beds. If an emergency budget item to fix it isn't on the Governor's "call" for the next special legislative session, it's evidence the state really doesn't give a damn about providing adequate mental health services to defendants in its care.

READER REQUEST: Would the anonymous attorney who entered the comment that spawned this post please contact Lucy at the number below? Advocacy Inc. are exactly the right folks to talk to about this. Let me know what happens, and thanks, Lucy, for following up:

If anyone has any information about the person with mental illness discussed in this article, please call me at 512-454-4816 x322, Lucy Wood, of Advocacy, Inc. I would like to visit the idea of working on this case with criminal defense attorney and/or working directly with the defendant. My agency is a non-profit legal services organization that focuses on the rights of people with disabilities, and we have worked on issues like this in the past. Please contact, and thank you.

In the wake of revelations that the agency spied on Americans, the National Security Agency announced it will boost its number of employees in San Antonio from 2,200 currently up to 5,200, dramatically expanding the local campus. The expansion, including an eight-figure construction project, is considered "one of the city's economic development gems." Via Victoria Kos.

Wednesday, January 18, 2006

Reacting to this Grits post about the overincarceration crisis at the Bexar County jail, Lucius Cincinnatus at the Jeffersonian asks, "And why don't we have a public defender's office here in Bexar County?"

Good question. The answer is because Bexar judges and county commissioners court can't agree, but County Judge Nelson Wolff wants to go in that direction, at least according to a couple of clips forwarded to me on the topic by San Antonio Express News writer Elizabeth Allen.

It turns out Bexar County last year did establish an appellate public defenders office using state grants, but the new agency doesn't handle indigent cases on the front end, which would better serve to reduce jail overcrowding and help more people. Bexar's appellate PD began over the summer. (SA Express News, 7-19-05)

Before Bexar expands to a full-blown PDs office, though, local officials will have to quit squabbling. Reported Allen in the San Antonio Express News (5-22-05), "commissioners and district judges [were] locked in a dispute over who will control a new office for public defenders."

Bottom line: Bexar judges appear not to want the county commissioners court to run an independent public defenders office. Under the terms of a state grant, the money is distributed to a committee made up of three judges, a lawyer, and three county commissioners representatives. Commissioners wanted to appoint an agency head to run the show, while a judge on the committee opined, "I don't know that they need day-to-day supervision by anyone."

This is a turf war: Without a PDs office, individual trial judges make decisions about indigent defense appointments, including pay, so their recalcitrance likely stems from not wanting to lose control. The dispute caused the whole process to stall, leading to the decision to only create an appellate PD agency. "I'd rather not have the program than make this a contentious thing between us and the judges'' said Commissioner Paul Elizondo last year, accepting half a loaf.

That aversion to contentiousness may be receding, though, as frustration mounts over the continuing overincarceration crisis at the Bexar County jail. Commissioners obviously blame the judges. Precinct 4 Commissioner Tommy Adkisson recently declared: "It's early in the budget year but this is getting real old ... There's going to be some warfare at the old Bexar County Courthouse if there's not some changes in attitudes."

For their part, Bexar district judges claimed they were "blindsided" by commissioners' anger, but given the background feuding over the PD's office that seems disingenuous. It looks to me like Bexar judges have been thwarting jail overcrowding solutions for quite a while.

UPDATE: Be sure to read career public defender Carol Huneke's arguments in the comments for keeping PD offices independent of both judges AND the commissioners court. (Carol and I went to school together. She's a Texan who practices law now at a PDs office in Washington state.) Carol makes a strong case:

There are a lot of reasons why independence is crucial, but it boils down to: You don't want the head of a public defenders office who feels like he or she has to please judges or commissioners. Public defenders have to stand up to judges all the time. I can't tell you the number of times that I've been threatened with jail for merely zealously representing my clients. If judges are in control, they will keep the most obsequious lawyers, not the best ones. If commissioners are in control, they will seek the lawyers who will cost the least, not who will do the best job.

Well said. She points to an instance in Grant County, WA last year where an unsupervised, high-volume, low-quality, judge-controlled indigent defense system caused innocent people to be convicted. The ACLU sued and a Washington judge declared the county's system deficient. "Maybe Bexar County can learn from Grant County's mistakes," she desiderates. Let's hope.

Tuesday, January 17, 2006

For more information about requesting information under Texas' open records laws (or how to respond to open records requests, for that matter, as a representative of a government agency in Texas), consult the comprehensive manual from the Texas Attorney General, which has recently been updated to include changes from the 79th (2005) Legislature. It'll tell you what's public, what's not, how to ask for information and when agencies have to respond - a great resource, as is the rest of their website.

As an aside, I've been filing open records requests in Texas, sometimes en masse, like this one, since the late '80s, and Greg Abbott has been the best open-records AG in Texas since Jim Mattox, IMO. The Legislature and special interests keep chipping away at open government in Texas every two years, but the folks in Abbott's open records shop fight hard to protect what's left. That's a refreshing contrast to, say, Dan Morales, who often seemed to look for excuses to allow exceptions. We have a relatively strong open records law in Texas, but it's a lot stronger when the AG enforces the public's rights, and when agencies respect the law and hand over the documents they should in the first place. Most do, but I could tell you stories ...

I don't usually do this, but it seems I need to take a moment on this blog to handle some official ACLU of Texas work stuff -- apparently a lot of county-level officials have been coming to Grits looking for information about an open records request I filed with them on behalf of ACLU of Texas. Just to keep from answering 300+ separate emails and phone messages, I thought I'd clarify the request here.

Here's the deal: Regular readers know I supported a new statutelast year on behalf of ACLU at the Texas Lege protecting the right of Texans to carry a firearm in their vehicle. The new law creates a presumption that drivers are "traveling" (and therefore legally carrying a weapon in their vehicle) unless one of five things is true: (a) the weapon is in plain view, (b) the defendant is a convicted felon, (c) it's a public, not a personal vehicle, (d) the defendant was committing a Class B misdemeanor or worse, or (e) the defendant is a gang-banger.

The bill author, state Rep. Terry Keel (R-Austin) who is running unopposed, now, in the GOP primary for the Texas Court of Criminal Appeals, thinks the meaning was clear: “In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,” Keel said in a public statement when the bill became law in September.

But some DAs, most prominently Houston's Chuck Rosenthal, have said they won't change how they instruct officers to enforce that statute, telling police to rely on old case law rather than the new statutory language. That's why I sent out an open records request on behalf of ACLU to Texas' district and county attorneys asking for any advice, recommendations or other communications to law enforcement agencies in their jurisdiction about how to interpret the new statute. I know from media reports that at least some DAs, like Rosenthal, did issue such advice, and I'd like to quantify how many told local agencies in their jurisdictions to thwart Rep. Keel's stated legislative intent.

That said, Texas' open records law doesn't require DAs or county attorneys to create any new document if it doesn't already exist, only to provide ACLU (or any requestor) with copies of any advice, recommendation, information, etc., that's already been compiled. N.b. If no one in your agency prepared such information, then just write us a note letting us know you don't have any responsive documents in your possession. If you didn't write a policy but forwarded some news article, email, listserv note, Power Point presentation or other information for clarification of the law, then that would be the responsive document. Or, some DAs or CAs may have issued formal, written policies -- clearly that would be responsive, too.

This hopefully isn't a big deal, guys -- if you created or distributed such advice or information, send it along. But if you didn't, no big deal -- just let me know. Thanks a lot for your patience, and I'm sorry if the letter was unclear. A bunch of you seemed confused by it.

And now, back to the regularly scheduled blog programming already in progress ...

UPDATE: Who said prosecutors and the ACLU never agree? I forwarded this post to Shannon Edmonds, a lobbyist for the Texas District and County Attorneys Association, who replied, "we're telling those who ask the same thing as you put in your blog, with one exception: if an officer asks for written legal advice in a specific case (as opposed to a general policy), that comes under protected work product. But that fact pattern is very unlikely. Otherwise, they should give you a copy."

I'd agree with that caveat, and wouldn't contest an agency withholding advice given under that fact pattern (because it would fall under an allowable exception, specifically 552.108, which is the open-case-exception for law enforcement in the TX Public Information Act). If it wasn't advice requested in a specific case, though, it ought to be public. Thanks, Shannon!

I'd say 'yes,' and argue that it's been heading that way for a long time, at least from my vantage point. Since 2001 in Texas, ACLU, NAACP and LULAC have collaborated to promote a joint criminal justice reform agenda at the Texas Lege, with successes including passing Texas' racial profiling law, several pieces of Tulia-related reform legislation, and requiring judges to sentence first-time, low-level drug offenders to probation and treatment instead of prison. Criminal justice reform topped the legislative agenda of the Texas NAACP in 2005 (see their President's report on the 79th Lege session [word doc]). Here were the top criminal justice items listed on Texas NAACP's formal lege agenda last year:

Sentencing Reform (especially for drug laws)

Police Accountability

Strengthening Community Supervision

Reforming the Death Penalty

'Shore up' Texas' Racial Profiling Law

Improve Indigent Defense

Prevent Wrongful Convictions

For Grits readers that list sounds almost like a broken record. Similarly, this LULAC public policy brief (pdf) advocating "pro-family" criminal justice reforms (described in this Grits post) was quite influential during the 79th Texas legislative session as lawmakers considered strengthening the probation system. Indeed, along with school finance and redistricting, criminal justice reform has been a primary focus of Texas' major civil rights groups since the turn of the century.That's why I'd say, empirically, criminal justice is already a major focus at least of Texas' civil rights movement. But I'd add this caveat: for Latinos, immigration reform must also be "the next" civil rights movement, and we all should join them -- it's not really a choice, the matter will be thrust upon them, IMO. Immigration and criminal justice are closely related, especially since illegal immigration is prosecuted formally as a crime in US courts. In Texas detainees are spurring a statewide overincarceration crisis and temporary jail-building bubble. Criminal justice reform should be, hell, it is the next phase of the civil rights movement. But it has to include everybody.

Sunday, January 15, 2006

On the political, economic and social consequences of crime, punishment and justice in the Lone Star State, from police searches at traffic stops to the county jail, the courts, the prison system, community supervision, and everything they impact. Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

It's a little more descriptive of what I'm doing here (and includes more of the search terms by which people most commonly get to the site) but I'm open to suggestions ...

UPDATE: Two Three other site notes. I've added an "About me" page linked permanently in the sidebar, and replaced the recommended grits recipe -- a garlic-cheese grits affair as prepared by Austin's Threadgill's restaurant -- that disappeared accidentally this summer when I crashed the code on my old blogger template and adopted Grits' current format. Finally, I've signed up for Google's Adsense program, but have only placed the ads on individual post pages and at the bottom of the righthand sidebar, not at the top of the main screen when you come on to the site. The hope is it will generate a little ad revenue off Grits' archives (search engine hits to individual pages make up nearly half my traffic) without annoying regular visitors. There'll be a few more site tweaks in the coming weeks to spruce the place up a bit for the new year. Stay tuned ...

Require corroboration for eyewitness testimony where the witness was not previously acquainted with the defendant. (This could have saved Ruben Cantu's life. Texas is the only state to require corroboration for informant testimony in drug cases.)

Require photo arrays and lineups to be done according to best practices, especially requiring them to be conducted by an officer who is not part of the invetstigation and who doesn't know the identity of the suspect.

Can anyone think of other ways to address the problem, or know what other jurisdictions have done?

Saturday, January 14, 2006

Reacting to an article in Governing magazine that highlighted Dallas' crime troubles, Houston Strategies blogger Tory Gattis thinks about implied prescriptions for Houston, but his discussion of crimefighting struck me as dishearteningly facile. He advises:

"Aggressively stomp out the recent crime spike, before it becomes a trend - the same way the Federal Reserve pulls out the stops to stamp out inflation at the first whiff, before it grows out of control - even at the risk of slowing down the economy. This means hiring and training more police and putting pressure on hot-spot apartment complexes to increase their security. I'd also like to see an active exploration of new technology, like ankle-bracelets with GPS tracking and wireless reporting for ex-cons on probation or parole (since most crimes, esp. violent ones, are repeat offenders). Crime reported? Check the database logs to see if any ex-cons were in the vicinity at the time, then look up their current location and pick 'em up."

Round up the usual suspects! Wow. The level of debate on criminal justice in this country amazes me sometimes. I left this reply in the comments:

With one in twenty Texan on probation, parole or in prison, your ankle bracelet idea is a) unworkable and b) totalitarian. Those are tools to use for folks who need high-intensity supervision -- typically as a last stop before revocation -- but aren't appropriate for everybody. Looking past rhetoric, supervision is expensive so it occurs on a continuum; it's not a one-size-fits-all deal.

Parole and probation should focus scarce resources on supervising the truly dangerous. Especially for probationers, some need less supervision, and all should be given a chance to earn their way off supervision, giving incentives for good behavior that in the long run work better than increased enforcement. Finally, perhaps the greatest public safety benefit might come from revamping evaluations for probation and parole officers and departments to hold them accountable for employment and recidivism rates.

Tory's a smart guy, but he's the kind of guy who thinks about crime in terms of how it affects property values. That's understandable. That's probably how most folks think about it, if they think about it at all, but it's a superficial viewpoint disconnected from underlying realities. You can't just throw money at crime and make it go away. Bottom line: In an era when prisons are full, the probation system is broken, and Texas prisons must release dangerous felons to make room for low-level offenders, even if you have more cops to "pick 'em up" it's no public safety solution, just the beginning of a new set of problems.

For crime victims, defendants and the justice system, public safety isn't just another item on a checklist to put in the city's promotional brochure -- real people's lives are affected, and when the government intervenes, as always, it can either make things better or make things worse. The same thing goes for "civil liberties."

For that matter, Texas state and local governments can't use deficits to finance their budgets (outside of voter-approved bonds), so somebody must pay -- I notice Tory's suggestion of "hiring and training more police" wasn't accompanied by a request to "raise my taxes, please," but that's what it amounts to. Cops are among the city's most expensive employees, and it may be that Houston needs more of them. But with limited resources, such big ticket items should be part of an integrated approach that prioritizes putting more resources into preventing crime, especially preventing recidivism.

I don't know what it is about crime and punishment stuff that makes small government conservatives forget how badly government can screw things up whenever it gets involved. The same concept applies in spades to interventions in people's lives via police, courts and jails. And when they get it wrong, public safety worsens. I don't mean to jump on Tory, but easy rhetoric like that makes it a lot more likely the politicos get it wrong.

Friday, January 13, 2006

Okay, we have a winner: after all, you don't run across fart jokes ever day that include the Queen of England in the punchline, so James Canup wins the prize for the following gag he attributed to an old Ms. Manners column:

It seems one day some dignitaries were having a ceremony where they would be presented to the Queen of England. They were going to ride up and meet her on horseback in some ceremonial ritual. As one dignitary rode up on his horse, the horse suddenly emitted a loud expulsion of gas. The dignitary, in front of the queen, apologized, "Oh, I am very sorry, your majesty." The queen replied, "That's quite all right. If you hadn't said anything I would have thought it was your horse."

Lucius Cincinnatus at the Jeffersonian emails to ask Grits' opinion on the Bexar County Jail's overincarceration crisis, described yesterday in the San Antonio Express News ("Crowded jail still vexes Bexar commissioners," Jan. 12). They're paying six figures for a new bureaucratic position to plan and coordinate housing for the jail population, but I don't think it will make a big difference without other changes.

For starters, those looking to reduce jail overcrowding should look to suggestions in Grits'"best practices" post on the topic. Several of those ideas apply to Bexar County's situation.

Bexar's failure to release more offenders on personal bond awaiting trial stands out as a big subject to address. Offhand, looking at the most recent report (pdf, Dec. 1, 2005) on Bexar County's jail population, 2,326 out of 3,930 inmates, or more than 59%, were incarcerated awaiting trial -- 641 of them misdemeanants and many more non-violent, low-level felons. By contrast, in much-larger Harris County, the number of misdemeanants in the jail is just over half that figure. So Bexar's incarcerating a much larger proportion of low-level offenders before trial than its larger cousin.

That's partially because in Bexar County, unlike Harris, the pretrial services division doesn't interview defendants unless they request an appointed lawyer (see the Bexar court rules, pdf), meaning that they don't screen many people who could be eligible for pre-trial release. Personal bonds should be offered based on defendants' relative dangerousness and likelihood to abscond, not the ability to pay a bail bondsman -- only screening formally indigent defendants excludes many from possibly receiving such bonds. Granting them more broadly could significantly reduce the jail population without harming public safety.

Bexar commissioners should also consider creating a public defenders office, which would streamline everything considerably for indigent defendants and help process cases faster and more cheaply. That's something the commissioners court could do on its own with help from state grants. [Correction: terms of the state grant mandate judges' involvement, more here.] In Hidalgo County the new public defenders office already has lessened jail overcrowding woes.

Part of the commissioners court's frustration is that they don't control a lot of the system. Reported the Express News:

Commissioners have no authority over other elected officials, and several county offices affect who gets in and out of jail, including the sheriff, courts, pretrial services and the district attorney. Dealing with the problem is a matter of ongoing negotiations.

District courts administrator Melissa Barlow Fischer said later that commissioners' remarks blindsided district judges.

"The district judges have been concentrating on jail population for the past year at the request of commissioners," Fischer said, adding that Adkisson had recently thanked them for their work. "It's a very complex issue, and we know that Commissioners Court understands that.

"We are looking forward to working with Mr. Charlton to find some answers," she added

I hope that's true because judges are critical to reducing jail overcrowding. Every one of those 641 misdemeanant defendants in the Bexar jail, for example, is there because a Bexar county judge decided to require them to pay bail instead of releasing them on personal bond. Even with more pretrial services recommendations for personal bonds, only judges could decide to do things differently.

Similarly, judges could start utilizing early probation release to reduce jail intake in the medium run. They should also quit requiring drug tests as bail conditions, since as I wrote in my "best practices" piece, "If you're not treating the addiction, the only point of drug testing is increased incarceration, and when jails are full we need to save the space for more dangerous offenders, not mere drug users." Nobody can make them do it -- Bexar judges would have to decide they wanted to reduce overcrowding and were willing to take leadership. Obviously, it's easier for judges to lock 'em up and pass on the problem to somebody else, but that's how Bexar got into this pickle.

Finally, local officials worried about overcrowded jails should show up at the Texas Legislature in 2007 to support a stronger probation system and targeted penalty reductions to reduce jail populations. In the big picture, Texas needs to focus criminal justice resources where they most benefit public safety, and quit expanding the system for expansion's sake.

Southern, daily and good for you

Grits for Breakfast looks at the Texas criminal justice system, with a little politics and whatever
else suits the author's fancy thrown in. All opinions are my own. The facts belong to everybody. Who is this guy?

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